The language of eternity. Constitutional review of the amending power in France (or the absence thereof)

When it comes to discussing the issue of the judicial review of the amending power in the French context, four cases are usually discussed. The first three occurred in a particularly dense political context. And all of them have helped shape French constitutional politics.

Before we set out to analyse those rulings, a few words should be said about constitutional review in France. Before 2008 (and the enactment of article 61(1) C) the CC was special among the world’s constitutional courts in that it could only exercise constitutional review under the form of ‘constitutional preview’. The 1958 Constitution created two distinctive procedures. Article 61(2) C allows for the review of ordinary Acts of Parliament. Under article 61(2) C:

Acts of Parliament may be referred to the Constitutional Council, before their promulgation, by the President of the Republic, the Prime Minister, the President of the National Assembly, the President of the Senate, sixty Members of the National Assembly or sixty Senators (...). [3]

Article 54 C has a separate purpose, namely to allow for a check on the compatibility between treaties and the Constitution before those treaties are ratified:

If the Constitutional Council, on a referral from the President of the Republic, from the Prime Minister, from the President of one or the other Houses, or from sixty Members of the National Assembly or sixty Senators, has held that an international undertaking contains a clause contrary to the Constitution, authorization to ratify or approve the international undertaking involved may be given only after amending the Constitution.

Nowhere in the Constitution does any clause explicitly enable the CC to review constitutional amendments; but neither does any ouster clause prohibit such review.

The first topical case is coeval with the major constitutional reform brought about by De Gaulle in 1962 regarding the way in which the Président de la République, the head of State, was appointed. Initially the President was designated by a body of about 80 000 delegates. Since 1962, he has been designated by universal suffrage. The bill introducing that reform was approved by ‘the people’ by way of a referendum based on article 11 C and not on article 89 C. Article 11 C provides for statutes to be adopted by popular referendum. The scope of subject-matters those statutes may cover is set out restrictively in article 11 C:

The President of the Republic may, on a recommendation from the Government when Parliament is in session, or on a joint motion of the two Houses, published in the Journal Officiel, submit to a referendum any Government Bill which deals with the organization of the public authorities, or with reforms relating to the economic or socialpolicy of the Nation, and to the public services contributing thereto, or which provides for authorization to ratify a treaty which, although not contrary to the Constitution, would affect the functioning of the institutions.

Although the provisions refer to ‘the organization of the public authorities’ and ‘the functioning of the institutions’, it was generally held that this procedure was not supposed to be used for the sake of amending the Constitution. As a matter of fact, the only provision in the Constitution’s chapter 16 (‘On amending the constitution’) was article 89 C, which provided for a different procedure from article 11 C:

The President of the Republic, on the recommendation of the Prime Minister, and Members of Parliament alike shall have the right to initiate amendments to the Constitution. A Government or a Private Member’s Bill to amend the Constitution must be considered within the time limits set down in the third paragraph of art.42and be passed by the two Houses in identical terms. The amendment shall take effect after approval by referendum. However, a Government Bill to amend the Constitution shall not be submitted to referendum where the President of the Republic decides to submit it to Parliament convened in Congress; the Government Bill to amend the Constitution shall then be approved only if it is passed by a three-fifths majority of the votes cast (...)

For De Gaulle to have recourse to article 11 C instead of article 89 C in order to alter the Constitution thus came as a shock to many lawyers, even, as we now know, inside the CC itself. The supreme administrative court (Conseil d’Etat) acting in its capacity as administrative counsel to the executive, maintained that article 89 C alone laid out the proper procedure for amending the Constitution. [5] In 1962, the President of the French Senate deferred this bill to the CC. The Court ruled that it had no jurisdiction to determine whether the bill violated the Constitution or not. That decision came in the formative years of the Fifth Republic. Commentators were keen to point to the Council’s leniency or maybe self-restraint. In 1962, interpreting (or maybe standing as the guardian of) the Constitution was a task beset with specific difficulties. The author of the Constitution had not yet left the stage. The artist was still at work and the plaster not yet hardened. De Gaulle was the artifex of the Constitution in the fullest sense: not the drafter in a technical sense (that had been the role of Michel Debré and his entourage); not the legal ‘author’ (the people had adopted the Constitution by way of a referendum), but the artist himself, who had moulded the Constitution according to his own idea of constitutional power. Maybe ‘idea’ is too abstract a word: the Constitution was moulded around De Gaulle’s very person. How could a newcomer like the CC not be immensely deferent in such a context? In the 1962 ruling, the legal realist could detect the work of a newborn institution deferring to the will of a ruler at the peak of his legitimacy. Anyone steeped in the tradition of French public law might also see a reference to the general will, a concept that spanned the gap between the French Revolution and the ideas of public lawyers of the Third Republic (1875–1940). These motives were not incompatible: deference to the legitimate author of the Constitution (something very different from mere submission to political force) was expressed in terms of adherence to enduring principles of legal legitimacy. At the same time, the irony was that the creation of the CC foreshadowed the demise of the classical theory of the law as the expression of the general will.

2. The 1992 (Maastricht) rulings

The next two relevant cases were decided in 1992, during the time when the burning issue of the ratification of the Maastricht Treaty was at the forefront of French politics.

a) On 2 September 1992, the CC was asked to review the ‘Maastricht’ Treaty on European Union. [6] The application was based on article 54 C rather than article 61 C. This was the second time that the Treaty had been referred to the Court. In April, responding to an initial article 54 C application introduced by the President, the Council had ruled that the Treaty could only be ratified after the Constitution had been amended (‘Maastricht I’). This triggered, among other things, the enactment of article 88-3 C. On 2 September 1992 (‘Maastricht II’) [7], the Council ruled that no clause in the Maastricht Treaty now came into conflict with the Constitution. The referral had alleged that ‘despite the adjunction [to the Constitution] of article 88-3 C [the Maastricht Treaty] remains in contradiction with the Constitution’. The claimants argued that the amending power had failed to amend article 3 of the Constitution as well as article 3 of the 1789 Declaration of Rights insofar as both clauses express, among other things, the principle of national sovereignty. The CC responded that:

Subject to the provisions governing the periods in which the Constitution cannot be revised (Arts 7 C and 16 C and the fourth paragraph of Article 89 C) and to compliance with the fifth paragraph of Art. 89 C (“The republican form of government shall not be the object of an amendment”) the constituent authority is sovereign; it has the power to repeal, amend or amplify constitutional provisions in such manner as it sees fit; there is accordingly no objection to insertion in the Constitution of new provisions which derogate from a constitutional rule or principle; the derogation may be express or implied. [8]

It also ruled that:

The constituent power is sovereign, save only for the exceptions indicated above; it has power to repeal, amend and amplify constitutional provisions in such manner as it sees fit.

…and that:

The effect of art. 88-2 is to remove the constitutional obstacles to integration of France into the economic and monetary union established by the Treaty; it is within the constituent authority’s discretionary power to decide whether to insert a new provision in the Constitution rather than amending or amplifying Arts 3 and 24 on the powers of the representatives of the people; the argument that those articles are violated is thus devoid of substance.

b) On 23 September 1992 (‘Maastricht III’) [9] a final attempt was made by several Members of Parliament to have the CC declare that the bill authorizing the ratification of the Maastricht Treaty had been passed in breach of the Constitution. It was an ‘article 62(1) C’ type of review as opposed to an ‘article 54 C’ one. The Act had been adopted by way of an article 11 C referendum. [10]

The CC maintained that it had no jurisdiction in such a case as ‘the CC’s jurisdiction is strictly defined by the constitution (...)’ and ‘art. 61 only empowers the CC to establish whether the organic laws [11] and the ordinary acts of parliament are compatible with the constitution (...)’ and does not specify whether ‘this competence extends to all legislative enactments, be they adopted by way of a referendum or be they enacted in parliament (...)’. [12]

3. The 2003 ruling

In March 2003 several Members of Parliament referred a bill ‘regarding the decentralized organization of the Republic’ to the CC. [13] The bill amended several clauses in the French Constitution. Along with another bill of the same nature that had not been referred to the CC, the bill had been passed on 17 March 2003 by ‘Parliament convened in Congress’, an ad hoc chamber which is competent, on the basis of article 89 of the Constitution, to approve constitutional amendments. The claimants based their application on article 61 C. They alleged that, despite this nature, the CC did have jurisdiction to review the bill. The Court took another view; in a rather laconic decision, it ruled that it had ‘no jurisdiction to decide’ the case.

The decision beautifully exemplifies the CC’s customary imperatoria brevitas. It is grounded on arguments of jurisdiction alone:

1. The council’s jurisdiction is defined restrictively by the constitution. It can only be expanded by way of an organic law with due consideration for the principles stated in the constitutional enactment. Claims cannot be brought before the CC in cases not provided for expressly in these enactments. 2. Article 61 of the constitution grants the CC power to review lois organiques or, if and when they are referred, lois ordinaires. [Yet] the CC does not derive from either art. 61, art. 89 or, for that matter, any other clause in the constitution, a power to review a constitutional amendment. 3. As a result, the CC has no jurisdiction [in the present case].

B. The CC does not review amendments.

The cases I have just reviewed have ‘contributed to the conclusion that, in France, constitutional amendment bills are not subject to constitutional review’. [14] The CC has repeatedly ruled that it has no jurisdiction over constitutional amendments. Only a minority of observers maintain that the matter is slightly more murky. In particular they insist on some details that lend credence to a more nuanced view of the matter.

1. This is obviously the case of the Maastricht II ruling in which the CC stated that the amending power was ‘sovereign subject to the provisions governing the periods in which the Constitution cannot be revised (Arts 7 and 16 and the fourth paragraph of Art. 89) and to compliance with the fifth paragraph of Art. 89 C (“The republican form of government shall not be the object of an amendment”) …’. It is of paramount importance to be mindful of the procedural context of this latter ruling. In the French Constitution, article 54 C and article 61(2) C create two separate procedural vehicles. On the basis of article 54 C, the CC is involved in the process of articulating international law (treaties already signed but not yet ratified) and constitutional law. The CC cannot annul the treaty or declare it void. It can only declare that, as a prerequisite to ratification, the Constitution has (or does not have) to be amended. It is then for the constituent power to decide whether such an amendment ought to be made. Such a declaration of incompatibility places the Court in a new context: as a part of the process of amending the Constitution, article 54 C puts it in a position to possibly trigger the amending process by pointing to the incompatibility between the treaty and the Constitution. The only remedy can be to amend the Constitution. Failing this the treaty cannot be ratified. As a result, article 54 C should be seen as one of the constitutional clauses regulating the amending power. Yet it is not a part of title XVI of the Constitution (‘of amendments to the constitution’) and it is not referred to in article 89 C. The Maastricht II ruling should be read in this light: the amending power had been exercised once but its use could still be required as a result of the Court’s review. At this point, the Court might be tempted to define some guidelines for the later use of its amending power by ‘Parliament convened in Congress’.

2. Be that as it may, this explanation is hardly of any use in the case of other relevant dicta regarding the amending power. In at least five decisions since 1999 [15] the CC set out the way in which the amending power could enact rules that ‘derogated from previous constitutional rules or principles’. There were, said the Court, ‘no hindrances’ to such an exercise of the amending power, ‘under the limits laid out in articles 7 C, 16 C and 89 C of the constitution’. In both these 1999 and 2003 rulings, the procedural context is also of interest: this was not an article 61(2) review C but an article 61(1) C procedure: what was brought before the Council was an organic law, not an ordinary act of parliament or a treaty.

Here, a reader not versed in French law might ask a very simple question: the entrenched 1958 Constitution contains certain limits on the amending power. These limits are spelled out by the CC itself in the rulings that have just been quoted (‘under the limits laid out…’). How, if the CC refuses to review amendments, can such limitations be enforced? The answer is clear: de lege lata they cannot, at least in the course of constitutional review as exercised by the CC.This might appear as a blunt disregard of the blank letter of the Constitution, and indeed it might well be just that. This is also an instance of the classical distinction in legal theory between the issue of validity and the possibility of a sanction: unconstitutional amendments can remain in force, as the constitutional court has refused to review them and has thus turned down the chance to declare them invalid. To fully understand this contradiction, one has to turn to what doctrinal literature has to say on these rulings.

Footnotes

[1] By way of convention CC will refer to France’s ‘Conseil constitutionnel’; ‘article xyC’ means ‘article xy of the French Constitution of 1958’. I am very grateful to Arnaud Le Pillouer, Carlos Pimentel, Guillaume Tusseau and Mikhail Xifaras for their comments on an earlier version of this paper. I also wish to thank Gregory Bligh for his help.

[47] Under both article 61(1) C and article 54 C, the CC has to be seized by certain political authorities of the State: the President of the Republic, the Prime Minister, the President of the National Assembly, the President of the Senate, sixty Members of the National Assembly or sixty Senators. It cannot seize itself.

[54] There are other instances of the same phenomenon: see e.g. article 53-1 C (inserted by the Loi constitutionnelle relative aux accords internationaux en matière de droit d’asile n° 93-1256 ) which was designed to overrule the interpretation that the CC gave of para. 4 of the preamble to the 1946 constitution in: Conseil constitutionnel [CC] N° 93-325 DC 13 Aug. 1993 Rec 224.

[63] At least it was ordinary in the sense that it was not a constitutional statute that amended the constitution. But it was not a statute of parliament: it had been adopted by way of a referendum via the article 11 C procedure. Interestingly, the statute was called an ‘institutional statute’ (loi portant dispositions statutaires) which highlighted its substantively (if not normatively) constitutional content. I would be tempted to add such institutional statutes to the category of quasi-constitutional rules I mentioned for organic laws.